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English No. ICC-02/05-01/20 OA9 Date: 27 August 2021 the APPEALS CHAMBER Before ICC-02/05-01/20-459 27-08-2021 1/20 EC T OA9 Original: English No. ICC-02/05-01/20 OA9 Date: 27 August 2021 THE APPEALS CHAMBER Before: Judge Piotr Hofmański, Presiding Judge Luz del Carmen Ibáñez Carranza Judge Marc Perrin de Brichambaut Judge Solomy Balungi Bossa Judge Gocha Lordkipanidze SITUATION IN DARFUR, SUDAN IN THE CASE OF THE PROSECUTOR v. ALI MUHAMMAD ALI ABD-AL- RAHMAN (“ALI KUSHAYB”) Public document Judgment on the appeal of Mr Abd-Al-Rahman against Pre-Trial Chamber II’s “Decision on the review of detention” of 5 July 2021 No: ICC-02/05-01/20 OA9 1/20 ICC-02/05-01/20-459 27-08-2021 2/20 EC T OA9 Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for the Defence Mr Karim A. A. Khan, Prosecutor Mr Cyril Laucci Ms Helen Brady Legal Representatives of Victims Ms Amal Clooney Mr Nasser Mohamed Amin Abdalla The Office of Public Counsel for victims Ms Paolina Massidda REGISTRY Registrar Mr Peter Lewis No: ICC-02/05-01/20 OA9 2/20 ICC-02/05-01/20-459 27-08-2021 3/20 EC T OA9 The Appeals Chamber of the International Criminal Court, In the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against the decision of Pre- Trial Chamber II entitled “Decision on the review of detention” of 5 July 2021 (ICC- 02/05-01/20-430), After deliberations, Unanimously, Delivers the following JUDGMENT The “Decision on the review of detention” of 5 July 2021 is confirmed. REASONS I. KEY FINDING 1. When read in context, the Appeals Chamber considers that the “hearing” under rule 118(3) of the Rules is intended to be a hearing on the circumstances justifying continued detention in article 58(1) of the Statute. This interpretation is consistent with the practice in the chambers of this Court. The Appeals Chamber also finds that this interpretation of the text actualises the intention of its drafters in designating an annual hearing in order to strike a compromise about the scope of the right to a hearing on interim release. II. INTRODUCTION 2. This is an appeal of the third decision of Pre-Trial Chamber II (the “Pre-Trial Chamber”) on the periodic review of the circumstances justifying Ali Muhammad Ali Abd-Al-Rahman’s (“Mr Abd-Al-Rahman”) detention pending trial. In this appeal, the Defence challenges the procedure taken by the Pre-Trial Chamber leading to its decision maintaining Mr Abd-Al-Rahman’s detention. The Appeals Chamber is called upon to determine whether the Pre-Trial Chamber erred in finding that the main purpose of the hearing under rule 118(3) of the Rules of Procedure and Evidence (the “Rules”) No: ICC-02/05-01/20 OA9 3/20 ICC-02/05-01/20-459 27-08-2021 4/20 EC T OA9 is to evaluate the detained person’s wellbeing and the conditions in the detention centre. The Prosecutor and victims oppose the appeal, and the Prosecutor submits that the appeal as a whole is inadmissible as it does not relate to the decision to maintain detention. III. PROCEDURAL HISTORY 3. On 27 April 2007, Pre-Trial Chamber I decided to issue a warrant of arrest against Mr Abd-Al-Rahman for his alleged responsibility for crimes against humanity and war crimes allegedly committed in the localities of Kodoom, Bindisi, Mukjar, Arawala and their surrounding areas, in Darfur, Sudan, between August 2003 and March 2004.1 4. Once the case was transferred to the current Pre-Trial Chamber, on 16 January 2018 the Chamber granted the Prosecutor’s application to amend the first warrant of arrest pursuant to article 58(6) of the Statute,2 by issuing a second warrant of arrest against Mr Abd-Al-Rahman for his alleged responsibility for crimes against humanity and war crimes allegedly committed in the locality of Deleig and surrounding areas between on or about 5 to 7 March 2004.3 5. On 9 June 2020, Mr Abd-Al-Rahman surrendered himself and was transferred to the detention centre of the Court.4 6. On 14 August 2020, the Pre-Trial Chamber, Judge Rosario Salvatore Aitala acting as Single Judge, issued a decision pursuant to article 60(2) of the Statute, finding grounds to detain Mr Abd-Al-Rahman pending trial5 (the “First Decision on 1 Decision on the Prosecution Application under Article 58(7) of the Statute, dated 27 April 2007 and registered on 15 May 2007, ICC-02/05-01/07-1-Corr, pp. 43-56; Prosecutor’s Application under Article 58(7), 27 February 2007, ICC-02/05-56. 2 Prosecution’s application pursuant to article 58(6) of the Rome Statute to amend the warrant of arrest for ALI MUHAMMAD ALI ABD-AL-RAHMAN (“ALI KUSHAYB”) by adding new crimes, 26 June 2020, ICC-02/05-01/20-6-Red2 (original confidential version filed on 3 November 2017). 3 Second warrant of arrest for Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), 11 June 2020, ICC- 02/05-01/20-80-Red, p. 13 (formerly, ICC-02/05-01/07-74-Red. Pursuant to Pre-Trial Chamber II’s Decision ICC-02/05-01/07-87 from 15 June 2020, this document was transferred in the case file ICC- 02/05-01/20 and re-stamped as ICC-02/05-01/20-80-Red; original confidential version filed on 16 January 2018). 4 See Pre-Trial Chamber II, Decision on the review of detention, 5 July 2021, ICC-02/05-01/20-430, para. 2. 5 Decision on the Defence Request for Interim Release, 14 August 2020, ICC-02/05-01/20-115, p. 11. No: ICC-02/05-01/20 OA9 4/20 ICC-02/05-01/20-459 27-08-2021 5/20 EC T OA9 Detention”). The Appeals Chamber confirmed the First Decision on Detention6 (the “Abd-Al-Rahman OA2 Judgment”). 7. On 11 December 2020 and 12 April 2021, the Pre-Trial Chamber reviewed Mr Abd-Al-Rahman’s detention and rejected the requests of the Defence for Mr Abd-Al- Rahman’s interim release, finding no change in the circumstances underlying the First Decision on Detention7 (the “First Review Decision” and the “Second Review Decision”, respectively). The Appeals Chamber confirmed both decisions8 (the “Abd- Al-Rahman OA6 Judgment” and the “Abd-Al-Rahman OA7 Judgment”). 8. On 5 May 2021, the Pre-Trial Chamber issued an order setting a schedule for the confirmation hearing and included, at the end of the schedule, a hearing for oral submissions on the “review of detention”. The Pre-Trial Chamber explained that the one-year period referred to in rule 118(3) of the Rules would expire on 15 June 2021, and it set oral submissions for 27 May 2021.9 9. On 24 May 2021, the Defence requested that the Pre-Trial Chamber postpone the annual hearing on detention pursuant to rule 118(3) of the Rules on the basis that the Appeals Chamber had not yet ruled on the Defence’s appeal against the Second Review Decision.10 In an oral decision delivered on 26 May 2021 (the “Decision of 26 May 2021”), the Pre-Trial Chamber rejected the Defence’s request to reschedule the hearing, 6 Judgment on the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against the decision of Pre-Trial Chamber II of 14 August 2020 entitled “Decision on the Defence Request for Interim Release”, 8 October 2020, ICC-02/05-01/20-177 (OA2). See also Separate concurring opinion of Judge Luz del Carmen Ibáñez Carranza to the Judgment on the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against the decision of Pre-Trial Chamber II of 14 August 2020 entitled “Decision on the Defence Request for Interim Release”, 8 October 2020, ICC-02/05-01/20-177-Anx (OA2). 7 Decision on the Review of the Detention of Mr Abd-Al-Rahman pursuant to rule 118(2) of the Rules of Procedure and Evidence, ICC-02/05-01/20-230-Red (original confidential version filed on the same date), para. 7, p. 10; Decision on the review of detention, ICC-02/05-01/20-338, para. 37, p. 14. 8 Judgment on the appeal of Mr Abd-Al-Rahman against Pre-Trial Chamber II’s “Decision on the Review of the Detention of Mr Abd-Al-Rahman pursuant to rule 118 (2) of the Rules of Procedure and Evidence”, 5 February 2021, ICC-02/05-01/20-279-Red (OA6); Judgment on the appeal of Mr Abd-Al-Rahman against Pre-Trial Chamber II’s “Decision on the review of detention”, 2 June 2021, ICC-02/05-01/20- 415 (OA7). 9 Order setting the schedule for the confirmation of charges hearing and convening an annual hearing on detention, ICC-02/05-01/20-378, paras 20-23. 10 Demande d’adjournement de l’audience relative à la détention, ICC-02/05-01/20-408 (registered on 25 May 2021). No: ICC-02/05-01/20 OA9 5/20 ICC-02/05-01/20-459 27-08-2021 6/20 EC T OA9 explaining, inter alia, that “the main purpose of the annual hearing on detention is to ascertain the conditions of detention”.11 10. During the hearing (the “Annual Hearing”), held the next day, the Pre-Trial Chamber explained that “the main purpose of this hearing is for the Chamber to ascertain if Mr Abd-Al-Rahman’s conditions of detention are fine, as it is mandated by Rule 118(3)”.12 It clarified that “this is not a hearing about whether pre-trial detention should continue or not.
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